Kurt Lee Villa, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0695

Kurt Lee Villa, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 20, 2021
Affirmed
Worke, Judge

Cottonwood County District Court
File No. 17-CR-15-283

Jason M. Birkholz, Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Nicholas A. Anderson, Cottonwood Co unty Attorney, Windom, Minnesota (for
respondent)

Considered and decided by Florey, Pres iding Judge; Worke, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant argues that the district court erred by denying his motion to vacate a
restitution order against him, a sserting that the district cour t lacked authority to order
restitution. We affirm.
2
FACTS
The facts are undisputed. A jury convicted appellant Kurt Lee Villa of third-degree
assault. At the sentencing hearing, the victim testified, without supporting documentation,
that he accrued approximately $45,000 in medical bills. Th e district court stayed the
imposition of Villa’s sentence and placed him on supervised probation for five years. As
one of Villa’s probation conditi ons, the district court ordere d him to pay re stitution. But
the district court delayed or dering a specific amount of restitution until it received an
affidavit of restitution to be filed within 30 days by respondent State of Minnesota. Later,
at the state’s request, the district court grante d a 45-day extension for the state to file the
affidavit.
After Villa filed a direct appeal, the state submitted its restitution affidavit itemizing
the victim’s $42,601.74 in damages.1 The district court ordered Villa to pay $42,601.74 in
restitution according to a payment plan. But because Villa failed to make payments, the
district court later amended the sentencing order and entered the remaining amount of
restitution as a civil judgment against him.
Villa then moved the district court to vacate the restitution order and civil judgment
under Minn. R. Crim. P. 27.03, subd. 9. The district court denied Villa’s motion. This
appeal followed.

1 On direct appeal, this court rejected V illa’s arguments that the prosecutor committed
misconduct and that his right to a speedy trial was violated. State v. Villa, No. A17-1051,
2018 WL 3014575, at *1 (Minn. App. June 18, 2018), rev. denied (Minn. Sept. 18, 2018).
Because Villa filed his direct appeal before restitution was finalized, we did not address
restitution at that time.
3
DECISION
Villa asserts that, because the district c ourt knew the approxim ate amount of the
victim’s damages at the sentencing hearing, it lacked authority to order restitution after that
hearing.
A court may correct a sentence that is una uthorized by law at any time. Minn. R.
Crim. P. 27.03, subd. 9. A sentence is unaut horized if it violates the law or applicable
statutes. Evans v. State , 880 N.W.2d 357, 359 (Minn. 20 16). Restitution is part of a
criminal sentence. State v. Borg, 834 N.W.2d 194, 198 (Mi nn. 2013). A defendant may
use rule 27.03 to challenge restitution that is contrary to law or applicable statutes. Evans,
880 N.W.2d at 359. We review de novo a district cour t’s denial of a motion to correct a
sentence under rule 27.03, subdivision 9. Id. And although we revi ew a district court’s
decision to order restitution for an abuse of discretion, we review whether the district court
has authority to order restitution de novo. State v. Andersen, 871 N.W.2d 910, 913 (Minn.
2015).
Before ordering restitution, the district court “shall obtain” information from the
victim that “describe[s] the items or elements of loss, itemize[s] the total dollar amounts of
restitution claimed, and specif[ies] the reasons justifying these amounts, if restitution is in
the form of money or property .” Minn. Stat. § 611A.04, subd. 1 (2020). Ordinarily, a
district court must resolve the restitution issu e at the sentencing hearing if it receives
competent evidence relating to the restitution amount at least three days before sentencing.
See id. But if it does not receive the information relating to restitution in time, restitution
may be reserved or continued. Id.
4
The district court may orde r restitution after a sentenci ng hearing if, among other
things, “the true extent of the victim’s loss . . . was not known at the time of [] sentencing.”
Id., subd. 1(b)(3). It is the district court’s knowledge of the extent of the victim’s loss, not
the victim’s or state’s knowledge, th at is relevant under this statute. Mason v. State, 652
N.W.2d 269, 272 (Minn. App. 2002).
Here, the state had not filed an affidavit of restitution by the time of sentencing.
Further, the amount the victim claimed at sentencing was only an aggregated estimate. The
victim did not explain how he arrived at the $45,000 figure, nor did he itemize the expenses
comprising that figure. Thus, the district court did not know the “true extent” of the
victim’s damages at sentencing.
This case is similar to State v. Irby, in which the defendant ar gued that the district
court lacked authority to issue restitution because the amount of damages was supposedly
known at sentencing. 957 N.W. 2d 111, 122 (Minn. App. 2021), rev. granted in
part (May 26, 2021). 2 But there, as here, the state had not submitted an affidavit of
restitution by the time of sentencing. Id. And although the victim in Irby presented some
evidence of damages at sentencing, even sp ecifying $65,657.82 as the amount, both the
defendant and the state acknowledged th at the amount was not “solid.” Id. The district
court reserved restitution and issued a restitution order after sentencing. Id. We affirmed
the restitution award, noting that the victim had not “finally determined” its damages at the

2 The supreme court granted review only on the issue of interp reting the wrongfully-
obtaining-assistance statute. State v. Irby, No. A20-0375 (Minn. May 26, 2021) (order). It
denied review on the restitution issue. Id.
5
time of sentencing. Id. Because the victim’s estimated damages in this case are even less
certain than the victim’s damages in Irby, we similarly conclude that the district court did
not know the “true extent” of the victim’s damages here. See id.; see also In re Welfare of
M.R.H., 716 N.W.2d 349, 352 (Minn. App. 20 06) (affirming post-sentencing restitution
order when, although victims claimed $21,6 19.96 in restitution affidavit submitted at
sentencing, the affidavit remained to be investigated), rev. denied (Minn. Aug. 15, 2006).
Villa contends that the definitions of “tru e” and “extent” require only that the district
court know the “actual scope” of the victim’s damages. But even using Villa’s definition,
the terms “true extent” and “actual scope” require more than mere estimation.
Villa asserts that “nothing in the statut e requires the victim to submit the actual
dollar amount of restitution.” This is inaccurate. The statute requires that the information
related to restitution “describ e the items or elements of loss, itemize the total dollar
amounts . . . , and specify the reasons justifying these amounts,” which implies something
more than either estimation or aggregation. Minn. Stat. § 611A.04, subd. 1.
Villa finally argues that this case is like State v. Meredyk, in which we stated that
the district court lacked authority to modify restitution under section 611A.04 because “the
extent of the victims’ losses were clearly established at . . . sentencing by [the defendant’s]
own admissions.” 754 N.W.2d 596, 601 (Minn. App. 2008) (concluding that district court
had authority to modify res titution for other reasons). But Meredyk is distinguishable.
There, the defendant negotiate d a plea agreement in which she admitted that she stole
“approximately $400,000,” and that the amount of the victim’s loss for which she must pay
was $400,000. Id. Here, in contrast, Villa has not admitted the restitution amount. Further,
6
the only available evidence was the victim’s estimate that he incurred approximately
$45,000 in medical bills, wit hout any documentation or ad ditional vetting. Such an
estimate does not provide the same level of certainty that was present in Meredyk.
In sum, the district court had authority to order restitution after the sentencing
hearing because it did not know the “true exte nt” of the victim’s damages at the time of
sentencing.
Affirmed.